The Thirsty Gargoyle tears the Consultation Apart
An excellent preliminary analysis of the Government’s Consultation.
A Couple of Oft-Misunderstood Points
In reading it, it’s crucial to remember two things.
- Weddings and marriages are not the same thing. A wedding — otherwise referred to as a marriage ceremony — is an event. This event gives access to marriage, that being an institution.
- There is no legal distinction between civil and religious marriages. There are legal distinctions between civil and religious marriage ceremonies, but that’s it. It is legally meaningless to speak of either civil or religious marriage. In law there is only marriage. That’s it.
Bearing that in mind, you should realise that the document is misnamed. It’s impossible to speak of ‘equal civil marriage’ in a meaningful British context; one can only speak of ‘equal marriage’.…There’s a handy annex at the back, including all questions being asked, and it gets interesting if you edit them to reflect legal reality. Look at questions five and six, for instance.
- Question 5: The Government does not propose to open up religious marriage to same-sex couples. Do you agree or disagree?
- Question 6: Do you agree or disagree with keeping the option of civil partnerships once civilmarriage is available to same-sex couples?
Yep, utter gibberish. Questions five and six make no legal sense unless the Government is planning on legislating to create new institutions called ‘religious marriage’ and ‘civil marriage’. As it stands, there’s only the one institution, which we call marriage, and which has been defined, since at least 1662, as being the union of a man and a woman primarily for the purpose of bearing and rearing children.…Early ProblemsLooking at the consultation, and bypassing the erroneous title, things get messy very quickly in the ministerial forward. Same-sex couples, we’re told, have access to the same civil rights as married ones, bar the ability to be married and the ability to say they’re married. It’s an odd sentence, and not merely because it wouldn’t take much to say ‘opposite-sex couples have access to the same civil rights as same-sex ones, bar the ability to enter into a civil partnership and the ability to say they’re civil partners’, which the government don’t see as an injustice in need of rectifying.No, as we all know, the Government’s claim is not quite true. I’m pretty sure ‘marriage’ isn’t a protected term in Britain. While they may not be able to say so for legal purposes, couples in civil partnerships regularly say that they’re married. What’s being proposed here is that others should be compelled to accept that same-sex couples are married. That’s a rather different thing.And then, lest we think that that was just a slip, we see the false distinction between civil and religious marriage rearing its head before the page is out:‘That is why we are, today, launching this consultation to seek your views on how we can remove the ban on same-sex couples having a civil marriage in a way that works for everyone. We are clear that no changes will be made to how religious organisations define and solemnize religiousmarriages and we are clear that we will retain civil partnerships for same-sex couples.’
Obviously, I’ve tidied it up a bit. The ‘topic’ section on the next page, headed ‘About this consultation’, blurs issues in exactly the same way, making the law seem a lot simpler and more compartmentalised than it really is:‘This consultation seeks your views on how to provide equal access to civil marriage for same-sex couples.
The Government is focused on looking at this specific issue and is not considering wider reforms to marriage. It is therefore not considering any reforms to religious marriage. Neither does this consultation look at opposite-sex civil partnerships.’
Never forget. The State, like the Church, says marriage is just one thing. There’s only one institution called marriage. It’s one house, entered by two doors, not two semi-detached ones with their doors side-by-side.
Go and read it all. Remember, these are arguments that are not about opposition to gender neutral marriage, they are simply about the Government’s fundamental misunderstanding of the current legal status of marriage and it’s solemnization.
If they end up creating a gender-neutral civil marriage, and a man-and-woman religious marriage, wouldn’t that be discrimination against those religions that would want gender-neutral marriage?
Exactly. The whole thing is a mess.
Thanks for posting this analysis of the UK government’s proposals on ‘Equal Civil Marriage’. As I suspected just from the title, the government doesn’t really understand what marriage is and the existing law around it, as this analysis very clearly shows. As a result, their proposals have the potential to create the mess of contradictory laws that we have here in South Africa. Only the implications of the particular type of mess that they seem to be proposing is even worse than our situation, which I will show in this post.
Firstly, to recap from my post on marriage and civil unions in South Africa from a few weeks ago (see https://www.peter-ould.net/2012/02/23/same-sex-marriage-affecting-other-sex-marriage/), we have three types of legal partnership as follows:
1. The Marriage Act 1970 as amended which is opposite-sex only. It unsurprisingly seems to be similar to existing marriage law in the UK.
2. The Customary Marriages Act 1998 which provides for mariage, monogamous or polygamous, under customary law. Many African countries have two parallel systems of law, customary and codified. Customary law applies to people living in areas under tribal authorities, effectively meaning that it applies to black Africans living in many parts of rural South Africa.
3. The Civil Union Act 2006 provides for same- and opposite-sex couples to get married or register a civil partnership.
South Africa’s legal framework for same-sex relationships in the Civil Union Act 2006, to take the useful terminology proposed by you Peter, provides for gender neutral marriage or civil-partnerships. As a result we have the confused situation where effectively you have one, two or three options for legalising your partnership, depending on your race and/or sexual orientation. You just have to pick one and my earlier post discussed some of the problems that have resulted from this multiplicity of acts.
We have however still kept religion out of the definition of legal partnerships, which is a significant gain. There may now be up to three different ways to legalise your partnership but none of these are defined by religion. As I posted though, people are given important rights of ‘conscience, religion or beleif’Â to not participate in the registration of same-sex relationships.
As I understand the UK proposals they will go well beyond our situation and create two new and separate types of partnership that will be termed ‘religious marriage’ and ‘civil marriage’. These separate categories have not existed before in law. New legislation to define and set the frameworks will clearly be needed. ‘Religious marriage’, defined by the state, rings all manner of warning bells:
1. If ‘religious marriage’ is created then there logically needs to be a clear legal framework for defining a religion in the UK. I’m not up-to-date with the situation for registering as a religion in the UK, but there is immediate potential for conflict with other laws. For example, unless carefully worded, the Equalities Act could presumably be used to deny religious registration to a religion that discriminates, as defined under the act.
2. ‘Religious marriage’ will be defined as opposite sex and so will presumably keep the same definitions of adultery as vaginal intercourse with someone outside the marriage. The definition of adultery will clearly need to be different for civil marriage as it will be gender neutral. Adultery will have to be very precisely defined for both opposite- and same-sex for the purposes of divorce law, giving different conditions for divorce between opposite and same-sex couples and between religious and civil marriage.
3. Marriage is currently a term used throughout family case law. South Africa got around this by changing all references to ‘marriage’ in old legislation to ‘marriage or civil unions’. As I posted earlier, leading constitutional lawyer and gay rights activist Pierre de Vos has recognised that ‘the new Act is silent on some difficult legal issues that necessarily flow from the fact that same-sex marriages are not gendered in nature’.
4. The likely result in the UK will be even messier still. Family case law will need to be extensively revised to take account of the three types of legal partnerships that are proposed, with their various combinations: ‘religious marriage’ – only opposite sex for the religious; ‘civil marriage’ – gender neutral marriage for any adult, and; ‘civil partnerships’ – only same-sex for any adult.
It’s a mess that is proposed which will require extensive new legislation and then changes to family legislation that ahve clearly not be thought through.
I think that this consultation should be retitled ‘Unequal religious and civil marriage: we’re clueless’!
Yes, it does look as though we are heading towards two forms of legal marriage in this country. “Religious marriage” would be opposite-sex; “civil marriage” would be gender-neutral. Presumably, one would need to have two separate forms of juristiction – one operated by Church Courts, for religious marriage, the other operated by civil courts for civil marriage.
It seems unfair to me that people who’ve married outside of church premises should now be officially redesignated as “partners” or “parties to the marriage” when I should think that most of them would prefer the terminology of “husbands” and “wives”. Will they have the option to re-register their marriages in Church premises?Â
That’s a very good question isn’t it? What if they were remarried divorcees? Why should they be barred from a “religious marriage” terminology?
And actually, you raise a REALLY good point. If we now formally have “civil” and “religious” marriage, the current Church of England rules allow refusal to marry for divorcees. Will that remain legal? And what about those religions (Unitarianism for example) who would be quite happy to do a gender-neutral religious marriage?
Messy, messy, messy. The more you look at it, the more you realise this is badly thought out legislation.
Isn’t it something of a grey area as to whether the C of E can lawfully refuse to marry a divorced parishoner already?
No, not in the slightest.
It seems to me to be at least arguable that those religions that wished to celebrate gender-neutral marriages would have a case under Article 9 of the European Convention on Human Rights – the right to freedom of thought, conscience, and religion, and the right to manifest it.
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If the government were then to permit religious organisations to celebrate such unions, it is possible that those religious organisations that refused to do so would face litigation for discrimination on grounds of sexual orientation, under the Equality Act.  Article 9 would probably enable them to defend such litigation successfully, unless the courts were to rule that opposition to gender-neutral marriage was not  a manifestation of Christian belief. Given that the Supreme Court was willing to overturn a 2,500 year old definition of who is a jew, in the Jewish Free School case, that’s not out of the question.
Clearly there IS some practical distinction between civil and religious marriage otherwise why would Rowan Williams have refused to marry Charles and Camilla in church? Â If there is only one marriage in the eyes of the CofE as church canon lawyers claim and the Church was in charge of it (according to Sentamu) then it looks like the Church can huff and puff all it like but the state took it away with the first marriage act setting up secular registration. The Church can guard the doors of the church against unsuitable couples, keeping weddings in the gift of vicars, but once parliament allowed secular civil marriage it’s as if the state started allowing people to slip round the back to get in anyway. The Church, if it ever did, stopped owning marriage at that point.
The Catholic Church is much clearer on this than the Anglican position – declared to be simple by the Bishop on Newsnight: “only one kind of legal marriage regardless of where it is conducted or whether the officiant is a priest of a registrar” Jeremy Paxman was told. But with the advent of non-religious registration this actually produced theological muddle. The Catholic position is clear – if you have been married before and have a partner still living you may have a register office marriage; you will be legally “married” but it won’t be recognised as a marriage (Holy Matrimony) by the Church. As Archbishop Nicholls has intimated, it is no more possible than a gay marriage.
“The Catholic position is clear – if you have been married before and have a partner still living you may have a register office marriage; you will be legally “married” but it won’t be recognised as a marriage (Holy Matrimony) by the Church.”
The Catholic church is a tad more “bible believing” in some areas.
The Catholic position is actually
rather more complicated than is generally assumed. It makes a distinction
between a sacramental marriage and a natural marriage. A marriage between two
baptized Christians is a sacramental marriage and, provided that it is
consummated, cannot be dissolved except by the death of one of the partners,
although it can be annulled if some pre-existing defect can be found, e.g. lack
of valid consent. If either or both of the partners is a Catholic, then the
marriage must be contracted in a Catholic ceremony; if it is contracted in a
Presbyterian church before a Church of Scotland minister, for example, or in a
registry office, then it will not be recognized as valid. If neither of the
parties is a Catholic, then the marriage is recognized as a valid sacramental one,
whether it takes place in a non-Catholic church or in a registry office. Â Â Â
A natural marriage, on the other hand,
is a legitimate union between two non-baptized persons, and since it is not sacramental,
it can be dissolved “in favour of the faith†if one of the parties later
becomes a Catholic, and the other party does not wish to continue with the marriage,
which then leaves the Catholic party free to marry again. This is called the “Pauline
Privilegeâ€.